INTRODUCTION AND BRIEF DESCRIPTION
A judge must hold an in camera hearing and consider the legal aid tariff of the province when determining the reasonableness of legal expenses.
SECTION WORDING
462.34(5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4)(c)(ii), a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.
EXPLANATION
Section 462.34(5) of the Criminal Code of Canada sets out the rules relating to the determination of legal expenses in the context of criminal proceedings. Specifically, the section outlines the process by which a judge will determine whether the legal expenses incurred by an accused person are reasonable. Under subparagraph (4)(c)(ii) of the same section, an accused person may be entitled to an order for the payment of reasonable legal expenses if certain conditions are met. These conditions include the fact that the accused person has been acquitted of the charges laid against them, or that the charges have been stayed or withdrawn. If the conditions are met, the judge must then hold an in camera hearing to determine the reasonableness of the legal expenses incurred by the accused person. This means that the hearing is held in private, without the presence of the Attorney General. During the hearing, the judge will take into account the legal aid tariff of the province. This refers to the maximum amount that legal aid will provide to a person for legal expenses in a criminal matter. The judge will use this tariff as a benchmark to determine whether the legal expenses incurred by the accused person are reasonable. The purpose of this section is to ensure that accused persons who have been through the criminal justice system and have been acquitted or had charges withdrawn are able to recover reasonable legal expenses. By setting out a clear process for determining the reasonableness of these expenses, the section helps to ensure that the financial burden of the criminal proceedings does not fall unfairly on the accused person.
COMMENTARY
Section 462.34(5) of the Criminal Code of Canada is a provision that allows the court to determine the reasonableness of legal expenses incurred by an accused person in a proceeds of crime matter. This provision is an important safeguard that ensures that the state cannot use the proceeds of crime legislation to deprive an accused of their right to a fair trial. The reason for this provision is that the proceeds of crime legislation creates a civil forfeiture regime that is distinct from the criminal law regime. The purpose of the civil forfeiture regime is to recover property that is believed to be the proceeds of crime, even if no criminal charges have been laid against the owner of the property. The civil forfeiture regime is governed by the principle that it is better to return property to those who have a legitimate claim to it, rather than to allow criminals to profit from their criminal activities. However, the civil forfeiture regime does have the potential to be abused. One way that it could be abused is by the state using civil forfeiture proceedings to deprive an accused of their right to a fair trial. For example, the state could seize the accused person's assets and use them to fund an investigation or prosecution. This would put the accused person at a significant disadvantage, as they would not have the resources to mount a proper defense. The purpose of section 462.34(5) is to prevent this from happening. The provision requires the court to hold an in camera hearing to determine the reasonableness of the legal expenses incurred by the accused in a proceeds of crime matter. During this hearing, the judge must take into account the legal aid tariff of the province. This means that the judge must consider whether the accused person's legal expenses are reasonable in light of the fees charged by legal aid lawyers in the province. The in camera hearing is held without the presence of the Attorney General, which ensures that the accused person's legal expenses are being evaluated in a neutral and unbiased manner. The judge is tasked with determining whether the accused person's legal expenses are reasonable, and if so, to order that the seized funds be used to pay for those expenses. Section 462.34(5) is an important provision that ensures that the proceeds of crime legislation is not used to deprive an accused of their right to a fair trial. It provides a safeguard that prevents the state from using seized funds to fund an investigation or prosecution, and instead requires that those funds be used to pay for the accused person's legal expenses. By doing so, it ensures that the accused person is able to mount a proper defense and that justice is served.
STRATEGY
Section 462.34(5) of the Criminal Code of Canada provides a mechanism for the reimbursement of reasonable legal expenses incurred by an accused person who has had their property seized under the proceeds of crime provisions. This section outlines a specific process for determining the reasonableness of the legal expenses, which involves an in-camera hearing without the presence of the Attorney General. The judge hearing the application must take into account the legal aid tariff of the province. There are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada. First and foremost, it is important to note that this provision applies only to individuals who have had their property seized under proceeds of crime legislation. This means that individuals who are facing criminal charges but have not had their property seized may not be eligible for reimbursement of legal expenses under this section. Second, it is critical to understand that the determination of the reasonableness of legal expenses is highly subjective and therefore can be subject to significant interpretation. The legal aid tariff of the province is only one factor that must be taken into account. Other factors that could be considered include the complexity of the case, the amount of work required of the lawyer, and the experience of the lawyer. In light of these considerations, there are several strategies that could be employed when dealing with Section 462.34(5) of the Criminal Code of Canada. First and foremost, it is important to retain legal counsel who is experienced in dealing with proceeds of crime cases. Such lawyers will have an understanding of the criteria that a judge will consider when determining the reasonableness of legal expenses, and will be able to argue effectively for the reimbursement of those expenses. Second, it may be useful to consider submitting an estimate of legal expenses to the court at an early stage of the case. This will provide the court with some guidance as to what the legal costs are likely to be, and can prevent issues arising later on when a bill is presented. Third, it may be necessary to demonstrate to the court that the legal expenses were incurred for legitimate purposes. This could involve presenting evidence to show the complexity of the case, the amount of work required of the lawyer, and other factors that may have justified the legal costs. Finally, it may be useful to engage with the Crown prosecutor's office in a collaborative fashion to encourage a favourable outcome. The Crown may be more willing to agree to the reimbursement of legal expenses where there is a common understanding of the issues and the parties are working in good faith. In conclusion, Section 462.34(5) of the Criminal Code of Canada provides an important mechanism for the reimbursement of legal expenses incurred by individuals who have had their property seized under proceeds of crime legislation. To take advantage of this provision, it is important to retain experienced legal counsel, to submit early estimates of legal expenses, to demonstrate the legitimacy of those expenses, and to engage collaboratively with the Crown prosecutor's office.